Free Memorandum - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ________________________________ ) THE ELLAMAE PHILLIPS COMPANY, ) a Colorado Registered Limited ) Liability Partnership, ) ) Plaintiff, ) No. 04-1544 L v. ) ) Judge Lawrence M. Baskir UNITED STATES OF AMERICA, ) ) Defendant. ) _______________________________ ) UNITED STATES' MEMORANDUM IN SUPPORT OF MOTION TO CERTIFY INTERLOCUTORY APPEAL AND MOTION TO STAY PROCEEDINGS PENDING RESOLUTION OF INTERLOCUTORY APPEAL

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TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii MEMORANDUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. II. III. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STANDARD FOR INTERLOCUTORY APPEAL . . . . . . . . . . . . . . . . . . . 3 DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. B. C. The Government's Motion is Timely . . . . . . . . . . . . . . . . . . . . . . . . 4 The July Order Involves a Controlling Question of Law . . . . . . . . . 7 A Substantial Ground for Differences of Opinion Exists Regarding the Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Certification Will Advance the Ultimate Termination of the Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 The Court Should Stay Proceedings in this Matter Until the Federal Circuit Resolves the United States' Petition for Interlocutory Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . 16

D.

E.

IV.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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TABLE OF AUTHORITIES FEDERAL CASES Ad Global Fund, LLC v. United States, 167 Fed. Appx. 171 (Fed. Cir. 2006) (unpublished) . . . . . . . . . . . . . . . 15 Am. Tel. & Tel. Co. v. United States, 33 Fed. Cl. 540 (1995), interlocutory appeal granted, 66 F.3d 344 (Fed. Cir. 1995) . . . . . . . . . . 4 Blendu v. United States, 75 Fed. Cl. 543 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 11, 12, 15 Christian v. United States, 44 Fed. Appx. 958 (Fed. Cir. 2002) (unpublished) . . . . . . . . . . . . . . . . 15 Coast Fed. Bank, FSB v. United States, 49 Fed. Cl. 11 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Doe v. United States, 372 F.3d 1347 (Fed. Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Glaxo Group Ltd. v. TorPharm, Inc., 153 F.3d 1366 (Fed. Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Hash v. United States, 2007 WL 1309548 (D. Idaho Feb. 1, 2007) . . . . . . . . . . . . . . . . . . . . . . . 2 Hash v. United States, 403 F.3d 1308 (Fed. Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . in passim In Re Convertible Rowing Exerciser Patent Litig., 903 F.2d 822 (Fed. Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Insurance Co. of West v. United States, 2000 WL 123380 (Fed. Cir. Jan. 11, 2000) (unpublished) . . . . . . . . . . 16

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Marriott Intern. Resorts, L.P. v. United States, 63 Fed. Cl. 144 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7 Nebraska Public Power Dist. v. United States, 74 Fed. Cl. 762 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Northrop Grumman Corp. Military Aircraft Div. v. United States, 131 Fed. Appx. 303 (Fed. Cir. 2005) (unpublished) . . . . . . . . . . . . . . . . 8 PSEG Nuclear, LLC v. United States, 140 Fed. Appx. 955 (Fed. Cir. 2005) (unpublished) . . . . . . . . . . . . . . . 14 Rhone-Poulenc Agro v. DeKalb Genetics Corp., 284 F.3d 1323, 1334 (Fed. Cir. 2002) (en banc) . . . . . . . . . . . . . . . . . . 16 Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420 (Fed. Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Scholl v. United States, 68 Fed. Cl. 58 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-7 Tesoro Hawaii Corp. v. United States, 89 Fed. Appx. 732 (Fed. Cir. 2004) (unpublished) . . . . . . . . . . . . . . . . 16 Vereda, Ltda. v. United States, 271 F.3d 1367 (Fed. Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Weir v. Propst, 915 F.2d 283 (7th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 FEDERAL STATUTES 16 U.S.C. § 1247(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1292(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 28 U.S.C. § 1292(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 7-9, 14, 17

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28 U.S.C. § 1292(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

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MEMORANDUM I. BACKGROUND Plaintiff claims that the Surface Transportation Board's ("STB's") issuance of a Notice of Interim Trail Use ("NITU") pursuant to the National Trails System Act, 16 U.S.C. § 1247(d) ("Trails Act"), effected a taking of its property in violation of the Fifth Amendment to the United States Constitution. Soon after Plaintiff filed its complaint, the Court granted the government's unopposed motion for a stay of proceedings pending resolution of Hash v. United States, Case No. 99-324-S-MHW (D. Idaho), which was then pending at the United States Court of Appeals for the Federal Circuit. See Order, dated Feb. 17, 2005 (Docket No. 11). Like the instant case, some of the claims in Hash involved portions of a right-of-way that had been granted to a railroad pursuant to the General Railroad Right of Way Act of 1875 ("1875 Act"). The issue on appeal in Hash was whether "the ownership of the underlying land remained with the United States for lands subsequently patented to settlers under the Homestead Act." Hash v. United States, 403 F.3d 1308, 1313 (Fed. Cir. 2005), reh'g denied (Aug. 15, 2005) ("Hash II"). After the Federal Circuit issued its decision in Hash II, the parties in the instant case filed cross motions for summary judgment on the question of the

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United States' liability. In these motions, both parties assumed that Plaintiff had a property interest in the right-of-way based on the Federal Circuit's decision in Hash II, but neither party treated Hash II as dispositive of all liability questions. The parties' briefs focused primarily on the question of whether railbanking and interim trail use were within the scope of the right-of-way and, to a lesser extent, on the question of whether the STB's issuance of a NITU effected an abandonment of the railroad's interest. On the eve of oral argument on the cross motions, the district court in Hash issued a decision on remand, concluding that the Federal Circuit's decision in Hash II mandated that it hold the United States liable for an unconstitutional taking. See Hash v. United States, 2007 WL 1309548 (D. Idaho Feb. 1, 2007) ("Hash III"). The Court heard argument on the parties' cross motions on February 16, 2007. While the matter was pending before the Court, the trial court in Blendu v. United States issued a decision, which followed the reasoning of Hash III. See Blendu v. United States, 75 Fed. Cl. 543 (2007) (issued Feb. 22, 2007). In the wake of these two decisions, the Court ordered the parties to provide supplemental briefing as to the proper interpretation of Hash II on the question of liability. See Order, dated Mar. 15, 2007 (Docket No. 64).

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On July 3, 2007, the Court granted Plaintiff's motion for summary judgment and denied our cross motion, finding that the "conversion of the railroad easement across Plaintiff's land to a recreational and bike trail constitutes abandonment" and "operation of [the Trails Act] constitutes a taking." July Order at 13. The July Order is based on the Court's interpretation of two sentences in Hash II, which the Court concluded mandated a decision that the United States was per se liable for a violation of the Fifth Amendment. The Court correctly noted in its decision that "[t]he absence of any predicate to the Federal Circuit's conclusory statement regarding abandonment is troublesome both for the litigants in Hash and for courts attempting to apply correctly precedent in other 1875 Act conversions." July 2007 Order at 11. II. STANDARD FOR INTERLOCUTORY APPEAL Paragraph 1292(d)(2) of Title 28 provides in pertinent part that: When any judge of the United States Court of Federal Claims, in issuing an interlocutory order, includes in the order a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation, the United States Court of Appeals for the Federal Circuit may, in its discretion, permit an appeal to be taken from such order, if application is made to that Court within ten days after the entry of such order. Id. The statute "establishes a three-part test for certification that `is virtually

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identical to the statutory standard of certification utilized by the United States district courts [under 28 U.S.C. § 1292(b)].'" Marriott Intern. Resorts, L.P. v. United States, 63 Fed. Cl. 144, 145 (2004) (quoting American Mgmt. Sys., Inc. v. United States, 57 Fed. Cl. 275, 276 (2003)). The multi-factor test "is designed to weigh the relative benefits of an immediate appeal." Am. Tel. & Tel. Co. v. United States, 33 Fed. Cl. 540, 541 (1995), interlocutory appeal granted, 66 F.3d 344 (Fed. Cir. 1995). Once certified, the Federal Circuit has discretion whether to accept an appeal. In Re Convertible Rowing Exerciser Patent Litig., 903 F.2d 822, 822 (Fed. Cir. 1990). III. DISCUSSION A. The Government's Motion is Timely

The statute governing interlocutory appeals does not set an explicit time limit within which a party must file a motion to certify. See 28 U.S.C. § 1292(d)(2). However, this Court has previously-held that the "statutory expectation that the appeal process will be implemented with dispatch should not be circumvented without reason. Accordingly, granting a motion to amend beyond the ten-day limitation period is only proper where there is a reason for the delay." Scholl v. United States, 68 Fed. Cl. 58, 59-60 (2005). As discussed below, this motion is timely.

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In the July Order, the Court directed the parties to submit a "Joint Status Report no later than August 3, 2007, proposing a schedule for further proceedings in this case." July Order at 13. Shortly after the Court issued its July Order, the undersigned counsel contacted Plaintiff's counsel to discuss the most efficient course of action. See Ex. 1 ¶¶ 3, 8-9. The parties ultimately submitted a Joint Status Report on Aug. 1, 2007 (Docket No. 78), less than one month after the Court issued the July Order. In the Joint Status Report, the United States stated that it "would like an opportunity to consider whether to ask the Court to certify an interlocutory appeal. . . ." Id. ¶ 2. The United States also informed the Court that the "internal process for determining whether to ask the court to certify a decision for interlocutory appeal is often time-consuming, requiring coordination among the Natural Resources Section of the Department of Justice, agency counsel, the Environment and Natural Resources' Appellate Section, and the Office of the Solicitor General." Id. ¶ 3. The decision to request certification to the Federal Circuit can be made by the Solicitor General of the United States only. The United States has not been dilatory in seeking direction from the Solicitor General's Office with respect to this motion. See Ex. 1. Plaintiff has been fully aware of the government's intention, and agreed in the August 1, 2007 Joint

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Status Report that "the best option is to permit the United States a reasonable period of time to consider the Court's ruling and determine whether to request certification." Id. ¶ 5. On August 10, 2007, the United States moved for approval of a proposed schedule. See Def.'s Mot. for Approval of Proposed Schedule (Docket No. 80). In that pleading, the United States repeated its intention to "determine whether to ask the Court to certify an interlocutory appeal. . . ." Plaintiffs did not file an opposition to that motion, and the Court granted the motion on August 13, 2007. See Order, dated Aug. 13, 2007 (Docket No. 81). The United States informed the Court and Plaintiff's counsel on October 1, 2007, that it was continuing to engage in the internal process necessary to determine whether to ask the Court to certify the decision, and noted that the matter was then pending before the Solicitor General. See Ex. 1. Upon receiving direction from the Solicitor General, the undersigned counsel filed this motion at the earliest practicable time. The United States, therefore, has timely engaged in the steps necessary to evaluate whether to request certification, and continually apprized Plaintiff's counsel and the Court of the status of the review process. Cf. Scholl, 68 Fed. Cl. at 60 (finding government's motion untimely because "[a]t no point did

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counsel advise the Court that he had initiated the review process, much less did counsel seek leave of this Court to stay proceedings pending the completion of the Department of Justice's internal processes"). The government's motion, therefore, is timely. B. The July Order Involves a Controlling Question of Law

The first criterion requires that the decision must involve "a controlling question of law." 28 U.S.C. § 1292(d)(2). A question is "controlling" when it "materially affect[s] issues remaining to be decided in the trial court." Marriott Int'l Resorts, 63 Fed. Cl. at 145; see also 16 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3930 (1996) ("Federal Practice and Procedure"). The question of the United States' liability for a taking of Plaintiff's property materially affects the outcome of the case for two reasons. First, the July Order fully determines all liability questions in the case; all that remains is to determine compensation. The July Order is "controlling" for purposes of Section 1292(d)(2), then, since it is wholly determinative of the United States' liability. See Federal Practice and Procedure § 3930 (question is undoubtedly "controlling" if its incorrect disposition would require reversal of a final judgment); cf. Northrop Grumman Corp. Military Aircraft Div. v. United States,

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131 Fed. Appx. 303 (Fed. Cir. 2005) (unpublished) (holding that arguments are more appropriately made from an appeal from a final judgment because other theories of recovery were unresolved). Second, the question that the Court resolved in its July Order is also "controlling" with respect to the appropriate methodology for assessing just compensation. Under the July Order, the railroad right-of-way was legally abandoned by operation of the STB's issuance of a NITU, and the United States is liable for imposition of a new easement on unencumbered property. If the Federal Circuit reverses in part ­ by, perhaps, reversing the Court's decision that the railroad right-of-way was abandoned by operation of the Trails Act ­ the parties' approach to calculation of just compensation would be significantly impacted. Such a decision by the Federal Circuit is certainly possible, given Plaintiff's arguments in this case. As the United States noted in its summary judgment briefing, Plaintiff "eventually conceded that the question of abandonment [of the railroad right-of-way] was not necessary to its position and [therefore], at most, Defendant would be liable for the additional burden imposed by interim trail use on an existing railroad use." Def.'s Resp. to Court's Jan. 30, 2007 Order at 10 (Docket No. 67) (citing Pl.'s Reply In Support of Mot. for Summ. J. at 8). If the Federal Circuit were to agree with Plaintiff's own

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position on appeal, the parties' approach to valuation assessment would be significantly altered. C. A Substantial Ground for Differences of Opinion Exists Regarding the Question

The second criterion requires that there exist "a substantial ground for difference of opinion" on the controlling question of law. 28 U.S.C. § 1292(d)(2); see also Vereda, Ltda. v. United States, 271 F.3d 1367, 1373-74 (Fed. Cir. 2001) (permitting interlocutory appeal because there is a "substantial ground for difference of opinion"); Nebraska Public Power Dist. v. United States, 74 Fed. Cl. 762, 764 (2006) (certifying interlocutory appeal because "the state of the law is such that there plainly are `substantial grounds for difference of opinion' that warrant further explication by the Federal Circuit"). The July Order relies solely on the interpretation of two sentences in Hash II: On the railway's abandonment of its right-of-way these owners were disencumbered of the railway easement, and upon conversion of this land to a public trail, these owners' property interests were taken for public use, in accordance with the principles set forth in the Preseault cases. On remand the district court shall determine just compensation on the conditions that apply to these landowners. Hash II, 403 F.3d at 1318; July Order at 12 ("The discussion of Category 1 and the concluding paragraph of Hash II must be read as a determination that

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conversions of 1875 Act easements to trail use constitute abandonment and give rise to takings liability."). As the Court acknowledged, however, nothing in the four pages of discussion preceding the paragraph raises "the question of whether or not the [railroad] rights-of-way were abandonment. Moreover, nowhere in the opinion are the other liability issues mentioned, much less discussed." July Order at 11. The parties and the Federal Circuit itself did not identify the question of abandonment or the question of the scope of an 1875 Act easement as issues on appeal in Hash II. See id. (acknowledging that the Federal Circuit "seemingly also saw the issue before it as limited to identifying the ownership of the reversionary interest"). Indeed, the United States explicitly reserved those liability issues in its pleadings at the District Court and on appeal. See Def.'s Resp. to Court's Jan. 30, 2007 Order (Docket No. 67) at 5 (showing that the government reserved in District Court briefing "other ownership and liability-related questions . . . for a subsequent briefing in this case"); id. at 7 (showing that the government reserved in appellate briefing issues "beyond the scope of this appeal, which pertains only to whether the Landowners have a property interest in the right-of-way"). The United States' interpretation of these sentences is set forth in detail in prior briefing. See id. at 4-20; Def.'s Reply to Pls.' Resp. Memo. (Docket No.

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74). The government's argument that the Federal Circuit intended to resolve only the single issue that the district court had resolved, that the parties had presented on appeal, and that the government had not specifically reserved, is a reasonable interpretation of Hash II. One look no further than the parties' own briefing to underscore the fact that substantial grounds for a difference of opinion of the meaning of Hash II exist. Prior to the issuance of Blendu, both parties appeared to agree that Hash II had not reached the liability conclusion articulated in the Court's July 2007 Order. Plaintiff did not argue that Hash II was dispositive until prompting from the Court after issuance of Blendu. Plaintiff's prior briefing, like the government's, focused on substantive liability questions that both parties apparently agreed were still at issue after Hash II. Similarly, the parties' discussion at oral argument reflected the parties' agreement that the Court would have to consider the parties' liability-related arguments, and not merely rely on Hash II. Based on Plaintiff's own understanding of Hash II, then, there are clearly substantial grounds for difference of opinion about the meaning of Hash II. Even assuming that Hash II did determine liability in that case, there is substantial ground for difference of opinion as to whether it is proper to apply that decision as precedent in other cases involving 1875 Act rights-of-way. The

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Preseault case referenced in the relevant language in Hash II demonstrates the highly intensive factual examination that may be necessary to determine liability in rails-to-trails taking cases. Preseault v. I.C.C., 494 U.S. 1, 16 (stating that "under any view of takings law, only some rail-to-trail conversions will amount to takings"). Absent any such factual analysis in Hash II, any liability determination it may have rendered should not be deemed to provide guidance for other cases. Moreover, Supreme Court and Federal Circuit precedent suggest that a decision on an issue that was not addressed by the district court nor briefed by the parties should not have the force of precedent. Applying the general rule that "a federal appellate court does not consider an issue not passed upon below," the Supreme Court reversed and remanded for further proceedings a lower court decision that addressed the ultimate merits of a case where, as here, the defendants had not had the opportunity in any court to brief the merits question. Singleton v. Wulff, 428 U.S. 106, 120 (1976). While the Court noted that a court of appeals may be justified in addressing a question not passed on below where the proper resolution is beyond doubt or injustice might otherwise result, id., neither of those circumstances is present here. The Federal Circuit has similarly recognized that the appellate court "does not `review' that which was not presented to the district court," Sage Prods., Inc.

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v. Devon Indus., Inc., 126 F.3d 1420, 1426 (Fed. Cir. 1997), unless the issue is purely "one of law" and "has been fully vetted by the parties on appeal," Glaxo Group Ltd. v. TorPharm, Inc., 153 F.3d 1366, 1371 (Fed. Cir. 1998). Applying this principle, the Federal Circuit en banc concluded that the ruling of a prior panel was not binding authority on a subsequent panel where the parties had not contested the issue on which the panel's holding rested. See RhonePoulenc Agro v. DeKalb Genetics Corp., 284 F.3d 1323, 1334 (Fed. Cir. 2002) (en banc). D. Certification Will Advance the Ultimate Termination of the Litigation

The third criterion requires the Court to consider whether certification will "materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(d)(2). Resolution of this issue "depends in large part on considerations of `judicial economy' and the need to avoid `unnecessary delay and expense' and `piecemeal litigation.'" Coast Fed. Bank, FSB v. United States, 49 Fed. Cl. 11, 14 (2001) (citations omitted). An interlocutory appeal in this case may result in a determination that the United States is not liable for a taking and obviate the need for a trial on damages. In addition, if the Federal Circuit reverses in part by, for example, reversing the Court's determination of legal abandonment of the railroad right13

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of-way, the parties' damage assessments would be significantly impacted. A valuation trial, requiring the use of expert appraisers and difficult questions on the before and after-value of a right-of-way that has been converted from railway to trail use, will be time-consuming and expensive. The Federal Circuit has repeatedly granted petitions to avoid complex and time-consuming damages trials or otherwise to save costs and preserve judicial resources. See, e.g., Doe v. United States, 372 F.3d 1347, 1351 (Fed. Cir. 2004); Christian v. United States, 44 Fed. Appx. 958 (Fed. Cir. 2002) (unpublished). Certification, therefore, could allow the Court and the parties to avoid an unnecessary valuation trial. Immediate appeal is also warranted here because a ruling on whether the unsupported statements in Hash II are binding in all similar cases could forestall lengthy and complex damages trials in the multiple other pending suits involving 1875 Act rights-of-way. In addition to Hash and Blendu, the United States is currently defending similar claims in Beres v. United States, No. 03785L (Fed. Cl.), which involves multiple 1875 Act-based claims, and Schneider v. United States, No. 8:99CV315 (D. Neb.), an opt-out class action that includes many 1875 Act-based claims. The Federal Circuit has frequently granted petitions for interlocutory appeal where a number of other pending cases

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involve the legal question on which appeal is sought. See, e.g., Ad Global Fund, LLC v. United States, 167 Fed. Appx. 171 (Fed. Cir. 2006) (unpublished) ("We note in particular that resolution of this issue will affect the resolution of other pending cases."); PSEG Nuclear, LLC v. United States, 140 Fed. Appx. 955, at *2 (Fed. Cir. 2005) (unpublished) (noting effect on other pending cases); Tesoro Hawaii Corp. v. United States, 89 Fed. Appx. 732 (Fed. Cir. 2004) (granting review because it "may help resolve many other cases pending at the Court of Federal Claims") (unpublished); Insurance Co. of West v. United States, 2000 WL 123380 (Fed. Cir. Jan. 11, 2000) (unpublished) (noting existence of three other cases with similar issues pending in the Court of Federal Claims); accord Federal Practice and Procedures § 3930 (text accompanying n.23-24). E. The Court Should Stay Proceedings in this Matter Until the Federal Circuit Resolves the United States' Petition for Interlocutory Appeal

An interlocutory appeal does not automatically suspend the trial court's jurisdiction. See 28 U.S.C. § 1292(d)(3) ("Neither the application for nor the granting of an appeal under this subsection shall stay proceedings in the . . . Court of Federal Claims . . . unless a stay is ordered by a judge . . . of the Court of Federal Claims or by the United States Court of Appeals for the Federal

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Circuit or a judge of that court."); accord Weir v. Propst , 915 F.2d 283, 286 (7th Cir. 1990). As discussed above, the only issue remaining after the July Order is determination of just compensation. Moving forward with a valuation trial would obviate any conceivable benefits of allowing the government to pursue an interlocutory appeal. To conserve judicial and attorney resources and to minimize unnecessary expense by the parties, the United States requests that the Court stay proceedings in this matter until the Federal Circuit resolves the United States' petition for interlocutory appeal. IV. CONCLUSION For the reasons discussed above, the Court should certify its July Order to the Federal Circuit, pursuant to 28 U.S.C. § 1292(d)(2). In addition, the United States respectfully requests that the Court stay proceedings in this matter until the Federal Circuit resolves the United States' petition for interlocutory appeal. In order to facilitate this certification, the United States requests that the Court amend its July Order to add the following language: Because this order involves a controlling question of law with respect to which there is a substantial ground for difference of opinion, and an immediate appeal from this order would materially advance the ultimate termination of the litigation, the court certifies to the United States Court of Appeals for the Federal Circuit for its consideration whether to permit an appeal to be taken from this order should a timely application be made to that court. This case is stayed pending further order. The United States shall file a status 16

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report within ten days of any action on its application by the Federal Circuit. Respectfully submitted this 19th day of October, 2007.

RONALD J. TENPAS Acting Assistant Attorney General

_/s/ William J. Shapiro_____ WILLIAM J. SHAPIRO Trial Attorney United States Department of Justice Environment and Natural Resources Division Natural Resources Section 501 I Street Suite 9-700 Sacramento, CA 95814 (916) 930-2207 (phone) (916) 930-2210 (fax)

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